IN
THE HIGH COURT OF MALAWI

LILONGWE
DISTRICT REGISTRY

CIVIL
CASE NO. 1210 OF 2006

BETWEEN

CEMENTATION
BUILDING CONTRACTORS……………………...PLAINTIFF

-AND-

M/S KIMS MEDICAL
CENTRE……………………….……………DEFENDANT

CORAM: MANDA,
SENIOR DEPUTY REGISTRAR

SALIMA
for the Plaintiff

WADI
for the defendant

RULING

This
is the plaintiff’s application for Summary Judgment taken out under
Order 14 of the Rules of the Supreme Court. The plaintiff
was asking
the court to enter judgment for the sum of K4, 107, 602, interest in
the said sum at the ruling Stanbic Bank lending
rate as well as costs
for the action. The application was supported by the affidavit of Mr.
Lewis Simutiana, the Managing Director
of the plaintiff company, at
the same time counsel for the plaintiff also filed skeletal
arguments. The application is opposed.

The
brief background to this matter is that the defendant contracted the
plaintiff to construct a shopping complex on plots number
2/633 and
634, Lilongwe, at a total cost of K67, 993, 624.00. According to the
plaintiff, it was an express term of the contract
that the defendant
would make interim payments on all finished works upon the plaintiff
submitting his invoices for the said work.
In this regard it was the
plaintiff’s submission that he has so far raised invoices worth K4,
107, 602. 00, which the defendant
has not honored hence the reason
the plaintiff took out this action. In terms of the application for
summary judgment, it was the
plaintiff’s contention that in as far
as the invoices remain unpaid, the defendant cannot be said to have a
defence as the same
would only be done by producing evidence to show
that they had honored the presented invoices.

On
their part it was the defendants defence that the invoices that the
plaintiff’s presented to them were honored after some negotiations

reducing the original values. As such the defendants denied owing the
plaintiff the sum stated. Of course I should point out that
the
defendants never produced any documentary evidence to show that they
had indeed honored the invoiced, reduced or otherwise.
At the same
time in their affidavit in opposition, the defendants denied that the
plaintiff was entitled to be paid merely upon
raising an invoice,
rather it was their contention that under clause 31 of the Bills of
Quantities, exhibited by the plaintiff
as “CBC 1,” payment for
work done was only supposed to be effected to the plaintiff upon an
Architect or Supervising Officer,
issuing an interim certificate for
purposes of ascertaining valuations. In this instance, it was the
defendant’s assertion that
contrary to clause 31, the plaintiff
himself issued the certificates and that the same were for inflated
values, which values they
are disputing. In addition, the defendants
did raise the issue of poor workmanship, specifically in relation to
the materials
that the plaintiff is said to have used in constructing
the roof of the shopping complex, which roof is apparently defective.
Indeed,
in this last regard the defendants proceeded to file a
counter-claim for the replacement value of the whole roof. Having
said all
this, it was thus the defendant’s submission that this
matter raises triable issues and consequently summary judgment can
not
be granted.

It
was also the defendant’s contention that on a point of law, they
should be given unconditional leave to defend this matter
since they
did raise a bona fide counter-claim arising out of the same subject
matter and connected with the grounds of the defence.
In this regard
the defendant cited the case of Morgan
& Sons Ltd v Martin Johnson & Co. Ltd [1949]
1 K.B. 107, which case was applied under Order 14/3-4/13 of the Rules
of the Supreme Court. Briefly this was the basis on
the defendant’s
opposition to this summons.

Having
gone through Order 14/3-4/13, it was the view of this court that the
position of the law is that the fact that the defendant
raises a bona
fide counter-claim on the subject matter of the action; he ought to
be given unconditional leave to defend. This,
it is noted, applies
even in situations where the defendant admits the whole or part of
the claim. Indeed it is the law that a
counter-claim ought to be
treated as a defence for the purposes of Order 14 (as per Cotton,
L.J. in Zoedone Co
v Barrett (1882)
26 S.J. 657). The reasoning behind this is not only to avoid
multiplicity of actions but also to allow for set-off, especially
in
situations where the amount of the defendant’s counter claim is
known and is capable of being set-off by the plaintiff’s
claim (see
Axel Johnson
Petroleum A.R. v Mineral Group A.G.
[1992] 1 W.L.R. 270). In the present instance the defendant did not
state as to how much it would cost him to replace the roof
and
whether indeed the same is capable of being set-off by the
plaintiff’s claim, but I suppose that this would also be a matter

of dispute and hence not suitable for these proceedings. However,
where there is no clearly no defence to he plaintiff’s claim,
so
that the plaintiff should not be put to the trouble and expense of
proving it, and the defendant sets a plausible counter-claim
for an
amount not less than the plaintiff’s claim, the court can proceed
to enter judgment for the plaintiff with costs, with
a stay of
execution until the trial of the counter-claim (see Sheppards
& Co v Wilkinson & Jarvis
(1889) 6 T.L.R 13, which is applied under Order 14/3-4/13). The
question is then, besides the counter-claim, (which I do believe
is
bona fide), is there a defence? In this instance, whilst in the
defence the defendant is saying that they paid off the plaintiff,
in
their affidavit in opposition, there is every suggestion that the
defendant is withholding the plaintiff’s payment on account
of the
fact that there were no interim certificates issued by an
Architect/Supervising Officer and that there was poor workmanship.
In
my view these aspects do not remove the fact that the defendant is
indebted to the plaintiff and there can not be said to constitute
a
defence. Nevertheless, there is the question as to the extent of the
indebtness, which in the circumstances I believe can only
be answered
after an independent expert has had to assess the actual value of the
work that was done and his findings subjected
to the test of a trial.

Having
said all this, it is the view of this court that there are several
issues that are being raised in this matter, which I believe
should
be dealt with at a full trial. I thus proceed to find that the
application for summary judgment fails and I do proceed to
grant the
defendant leave to defend this matter. Costs of these proceedings
will be in the cause.

Made
in Chambers this…………...day of……………………………………2007

K.T.
MANDA

SENIOR
DEPUTY REGISTRAR